SAN FRANCISCO—As those who've been following the case know, the Erotic Service Provider Legal, Education and Research Project (ESPLERP) and its fellow plaintiffs were dealt a blow last May when U.S. District Judge Jeffrey S. White granted summary judgment to the defendants in ESPERLP's lawsuit to overturn California's prostitution statutes; specifically Sec. 647(b) of the Criminal Code. But ESPLERP appealed that decision, and the case is now before the Ninth Circuit U.S. Court of Appeals, and ESPLERP's attorneys, H. Louis Sirkin and D. Gill Sperlein, have just filed their reply brief in the matter.
In the brief, the attorneys charge that, "Just as it did in the District Court below, the State here again misapprehends the fundamental liberty interest at issue in this case," the brief begins. "The liberty interest at stake is far greater than just 'a fundamental right to engage in prostitution' as the State claims ... In truth, this case is about consenting adults. It is about the right of those consenting adults to be free from the government intruding into their private, sexual lives."
The brief goes on to quote Lawrence v. Texas, the U.S. Supreme Court decision that legalized private consensual sodomy, as well as Reliable Consultants v. Earle, the Fifth Circuit's Texas dildo case, both of which affirm, in Reliable's words, "The individual's right to make private decisions about consensual intimate conduct." That sentiment is at odds with the government's interpretation of controlling law, which in their view limits sexual freedom to "highly personal bonds" and relationships that develop "deep attachments or commitments." In other words, in the government's view, if there isn't some sort of deep personal relationship somewhere down the road, the brief sexual encounters of a prostitute and a john shouldn't be protected.
But "The record in Lawrence contained no evidence whatsoever that Messrs. Lawrence and Garner were in a relationship with 'deep attachments or commitments'," the appellants argue in their brief. "Quite the contrary, 'Lawrence and Garner were not in a long-term committed relationship'," referring to a case study of Lawrence v. Texas by Dale Carpenter.
"Nowhere did the Lawrence Court apply anything similar to the argument advanced by the State in this case that the Due Process Clause of the Fourteenth Amendment only protects relationships with 'deep attachments or commitments'," they state. "The liberty protected by the Due Process Clause is not limited to deeply committed relationships."
The appellants also take issue with the State's assumption that because the Supreme Court distinguished the relationship between Lawrence and Garner from that of a prostitute and john, that somehow means that the high court was saying that consensual prostitution would not be protected under the Fourteenth Amendment.
"These sentences did not mean that laws criminalizing prostitution or laws forbidding same-sex marriages could withstand constitutional muster," they argue. "Rather, these sentences from Lawrence were only the Court's acknowledgment that the Court did not need to address those issues at that point in time."
The appellants then argue that the trial court's application of mere "rational basis review" of the prostitution law was an insufficient standard to apply, and that some form of "heightened scrutiny" should be used—just as the Supreme Court applied in Lawrence. They similarly dismiss the State's argument that even if people have a right to have sex with each other without the government looking over their shoulder, they should similarly have the right to pay for, or accept money for, that sex.
"[M]ore fundamentally, the State totally disregards the fact that when the liberty guaranteed by the United States Constitution protects a person from certain governmental intrusion, then that liberty also protects against the State completely outlawing transactions of commerce relating to that Constitutionally-protected behavior," they wrote. "Just as the government cannot say 'it is legal for you to possess a firearm, but it is illegal for you to purchase any firearm,' so too can the government not say 'it is legal for you to engage in sexual activity, but it is illegal for you to pay for any sexual activity.' Such a position defies logic."
The rest of the brief is spent debunking the State's attempts to paint prostitution with the same brush as sex trafficking and/or rape, with the appellants arguing that if the state wants to make laws outlawing those criminal acts, it should do so specifically, and allow consensual prostitution involving only adults to be let alone. They similarly debunk the argument that prostitution encourages the spread of sexually transmitted infections, noting that "those concerns may justify the several public health initiatives already in place regarding those 'risky sexual behaviors.' But none of these posited governmental interests justify the outright prohibition on giving or receiving anything of value in connection with sexual activity that is itself perfectly legal."
Besides the government's appellate brief which was filed in early December, several other organizations have together filed an amicus brief supporting the government's position. Those organizations include the National Center on Sexual Exploitaion, Covenant House California, Freedom from Exploitation, Coalition Against Trafficking in Women, Equality NOW, Demand Abolition, Chicago Alliance Against Sexual Exploitation, Wichita State University Center for Combating Human Trafficking and several others.
It is not known when the Ninth Circuit will be hearing this appeal, as no court date has yet been scheduled.